MIAC v Khadgi

Whether there would be consequential cancellations under s 140

1. There are no persons whose visa would be subject to consequential cancellation. The applicant states, and the Tribunal accepts, that his partner's visa may be refused if his visa is cancelled.

If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa

1. The applicant has a child born in October 2021 (he provided to the delegate the child's birth certificate) and the child is an Australian citizen. The applicant presented to the Tribunal evidence of his child's Australian citizenship.
2. The Tribunal is generally of the view that given the children's young age, he would be easily able to adapt to life in any other country, including China. It is not uncommon for children to migrate to a new country with parents and the applicant has not satisfied the Tribunal that his son's particular circumstances would render him unable to adapt to the new environment or make it difficult for the child to do so.
3. While it is in the best interests of a child to be cared for by both parents, this need not necessarily occur in Australia, irrespective of the child's citizenship or country of birth. If the applicant's visa is cancelled and his wife's visa application is refused, the family have an option of relocating to China together as a family unit and in these circumstances, the child will continue to have the care of both parents. Ordinarily, this would mean that the best interests of a child would not be adversely affected if a parent's visa is cancelled and if both parents leave Australia as a result and the family unit is preserved.
4. However, the Tribunal acknowledges that the situation in the present case is different because China does not recognise dual citizenship. The DFAT report on China, published in October 2019, confirms that China does not recognise dual citizenship and that "Children's citizenship is obtained through their parents, who must register their offspring in accordance with the hukou system within one month of birth (see Hukou (household registration) system). Children who are not registered, do not have a hukou and cannot access public services, such as health care and education, and they cannot legally marry, or obtain a job in the formal workforce". The Tribunal acknowledges that if the applicant's son retains his Australian citizenship (that is, if the Australian citizenship cannot be or will not be renounced), the child is unlikely to be able to acquire Chinese citizenship and that may mean that he will not have access to public systems, including healthcare and education. It may be necessary for the child to rely on private education and private healthcare and other systems that are not subsidised by the government. It is also likely that the child will require residence permits to remain in China on a long term basis.
5. The Tribunal accepts that the residence of the Australian citizen child in China, where he cannot acquire Chinese citizenship without renouncing the Australian citizenship, and where he may be required to reapply for visas and routinely register with the local authorities and have limited access to government services, may cause hardship to the family. The Tribunal accepts that given his Australian citizenship, the applicant's son may experience significant limitations in various aspects of his life in China, including residence permits, access to education, healthcare and employment unless the Australian citizenship is renounced and Chinese citizenship is acquired. In these particular circumstances, the Tribunal has formed the view that the best interests of the applicant's child would be adversely affected by the cancellation of the applicant's visa. That is, it is in the best interests of the child if the applicant's visa is not cancelled. This is a primary consideration but it is not a determinative one.
6. The applicant also told the Tribunal that he would not earn as much as he does in China and he would not be able to support his family. The applicant claims that his child is used to the English speaking environment and the Australian education system and would find it difficult to adapt to life in China. The Tribunal does not accept that claim, given that the child is about 10 months old and would not have had any exposure to the Australian education system. The applicant claims that he wants his child to be educated in Australia and the education system here is different, and while the Tribunal accepts that is the case, the applicant has not established that one is necessarily better than the other.

Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations

1. There is no evidence, and the applicant does not claim, that Australia's protection obligations arise in this case. The applicant told the Tribunal that his parents would be upset if the family was to return to China but in the Tribunal's view, such matters do no give rise to Australia's protection obligations.
2. The applicant's son lives in Australia and is an Australian citizen. His partner lives in Australia but does not have a permanent visa. It is open to the family to relocate as a family and the Tribunal does not consider that the family unity obligations would be breached by the cancellation of the visa.

Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

1. If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be subject to detention and removal from Australia. There is no suggestion he would be detained indefinitely. The applicant may apply for other visas in Australia but there are limited types of visas he could validly apply for due to the operation of s 48. The applicant may be subject to an exclusion period if he was to apply for a visa offshore. If the visa is cancelled, the applicant would lose the entitlements he had acquired as a permanent resident of Australia. He may also be unable to sponsor his partner for an Australian visa.

Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

1. In his response to the NOICC, the applicant states that if his visa is cancelled, it would affect his life and future plans. The applicant states that he would have to return to his hometown in Heilongjiang which is an industrial area affected by air pollution and he is concerned about his child's health. The Tribunal found the applicant's evidence vague and unsupported by any probative evidence, either concerning the level of pollution in the applicant's hometown or the possible effect it would have on his child's health. In the absence of probative evidence about the effect of the claimed pollution on his child's health, the Tribunal does not accept that the child's health would be affected if the child was to relocate to China.
2. The applicant also provided evidence of high unemployment in China and the high cost of living. The Tribunal does not find such generalised statements helpful. The applicant presented no satisfactory evidence of having applied for jobs in China and of having been unable to find employment in China. There is no evidence as to what the applicant's income may be and what his future expenses may be. While there may be a high unemployment rate in China, it is not necessarily obvious that it affects all industries and all geographic locations and the applicant has not established that to be the case. On the evidence before it, the Tribunal does not accept the applicant would be unable to find employment in China. The applicant also refers to his wife's qualifications, noting that she would be unable to find a job in her own field and the Tribunal accepts that it may be difficult or impossible for her to work in the specific field, given her Australian qualifications, but the Tribunal is not satisfied on the evidence before it that other work may not be available to her.
3. The applicant states that their parents are elderly and he has not been able to tell them about the visa cancellation as he is concerned about their health. The applicant states that he may lose his job and may struggle to support himself. The applicant states that he is also concerned about his wife, whose mood has not been stable since his visa was cancelled. The applicant states that his young son needs his mother. The Tribunal is mindful that the cancellation of the applicant's visa should not lead to the separation of the young child and his mother.
4. The applicant states that the cancellation of his visa would affect his employer who has given him a lot of responsibilities, and if he leaves, their usual clients may leave the company and the company would suffer a great loss, and his work colleagues would also experience hardship as they lack experience and language skills. Again, the applicant's claims are entirely unsupported by any probative evidence. It is not apparent why the company's clients would leave the company if the applicant was to leave. While the applicant provided to the Tribunal general information about skills shortage in Australia, the applicant presented no evidence that his specific employers would be unable to replace him. The Tribunal is mindful that the applicant is free to leave his employer at any time and most employers would have done some planning for such an eventuality. In this case, the employer was put on notice in November 2021 that the applicant's visa has been cancelled and that he may be required to leave Australia. In the Tribunal's view, that would have given the employer time to consider alternative arrangements in case the applicant could not remain in Australia. The Tribunal does not accept that the cancellation of the visa would have the consequences for the applicant's employer and colleagues to which the applicant refers.
5. The applicant refers to his wife's Australian qualification, stating that if his visa is cancelled, her application would be refused and she will end up with a 'visa refusal record', despite being innocent, and his wife will suffer because of him. The Tribunal accepts that evidence. The applicant claims that due to her Australian qualifications, his wife may find it difficult to find a job in China. The Tribunal is prepared to accept that Ms Zhang may not be able to find employment in China in the same field for which she trained in Australia, but the applicant presented no evidence that she would be unable to find employment in another field.
6. The applicant refers to the length of time he has spent in Australia and his stable family life. He states that he has property in Australia and has rarely returned to China. He states that he has adapted to the Australian environment and he and his partner have focussed on their lives in Australia. The Tribunal accepts that evidence but is mindful that the applicant had previously spent his entire life in China before making the decision to study and then migrate to Australia. Despite having limited or no connections to Australia, the applicant was able to establish himself in this country. In the Tribunal's view, he would be equally able to re-establish himself in China where he (and his partner) have spent the majority of their lives.
7. The applicant states in his evidence to the delegate that his wife has recently given birth and she is in a fragile state, and the cancellation of his visa would affect her physical and mental condition. The applicant refers to their future plans of running their own business, his wife returning to work and of providing a better education for their child. The Tribunal is mindful that the applicant's partner does not have an Australian permanent visa and in the Tribunal's view, cannot assume that she would be permitted to remain in Australia permanently before such a visa has been granted. As for the applicant himself, the Tribunal accepts that the applicant has made plans for the family's future in Australia. The Tribunal places some weight on the fact that the applicant's residence in Australia, his settlement in Australia and his ability to make future plans in Australia stem from the fact that the applicant was granted the Australian permanent visa to which he was never entitled.
8. The applicant refers to his wife's depression during pregnancy and claims that it continues even now. He states that they have not been able to see a psychologist due to child-caring responsibilities. In the Tribunal's view, if Ms Zhang was genuinely suffering from depression or mental health or general health issues, she would find the opportunity to seek professional help. The applicant's evidence to the Tribunal is that his wife has not seen a health professional and has not been professionally diagnosed with depression and it is only his view and the view of their friends. The Tribunal is not prepared to accept the applicant's diagnosis and, in the absence of medical evidence, the Tribunal does not accept the applicant's claim that his wife's health would be adversely affected if his visa is cancelled.
9. The applicant told the Tribunal that his parents are not in good health and they would be very upset if he has to return to China, so he has not told his parents about the cancellation of the visa. The Tribunal is prepared to accept that evidence.
10. The applicant told the Tribunal that he would not be able to meet the financial costs of living in China, particularly as his child would have to go to an expensive private school and they have nowhere to live. The applicant states that he would not be able to earn as much in China and he states that the economy in his hometown is 'very bad'. The applicant refers to strict COVID-19 lockdowns, which may also affect his income. As noted elsewhere, the applicant presented very little evidence to support these claims. For example, there is no evidence before the Tribunal as to what the applicant's expenses might be in China and what his, or his wife's earning capacity might be, and whether there are other sources of income they may rely on (such as property in Australia, family or friends).
11. The applicant refers to the family dog, stating that the dog brought them much joy and they never left him alone but if they were to return to China, they may have to put the dog up for adoption. The Tribunal accepts that evidence, although it may also be possible for the applicant to bring the dog to China, following the appropriate quarantine requirements. The applicant provided to the Tribunal a media article about a dog being killed in China. The relevance of this is not entirely clear to the Tribunal given the applicant's claim that they would not take the dog to China. The Tribunal is also of the view that the general behaviour of the population in China cannot be ascertained by reference to a single reported incident. Should the applicant decide to bring his dog to China, the Tribunal does not consider that there is a risk of the dog being harmed in the way described in that article.
12. The applicant also concedes that when sponsoring his wife for the Partner visa, he referred to his relationship with Ms Liu, which he claimed was in existence between August 2014 and March 2017. (This information was provided to the applicant pursuant to s 359AA of the Act.) The applicant told the Tribunal that the agent wanted to provide consistent information in his Skilled visa application and the Partner visa application. The applicant claims that the agent completed the form and he thought that as long as their relationship was genuine, it would be ok. The Tribunal finds that the applicant gave false or misleading information when sponsoring Ms Zhang for a Partner visa. The applicant's preference was consistency, rather his obligation to provide truthful information. The applicant's disregard for the truth in his dealings with Immigration is of significant concern to the Tribunal.
13. The applicant repeatedly told the Tribunal that he is sorry for the mistakes he has made. However, he also repeatedly stated that the incorrect information was provided by the agent and his only mistake was not to check the forms. The applicant appears to wish to minimise the extent of his involvement in the fraud. The Tribunal is also mindful that, having provided incorrect answers in his own Skilled visa application, or having caused such answers to be provided, the applicant did the same when sponsoring his partner. In the Tribunal's view, if the applicant was genuinely concerned about his conduct in the Skilled visa application, he would not have continued in the same conduct in the sponsorship of his wife.
14. Ms Zhang also described the hardship that the family would experience if the applicant's visa is cancelled. She referred to her parents' poor health and states that their parents had sold property and contributed a lot to allow them to buy a property in Australia. Ms Zhang states that she wants her son to get an Australian education and she is concerned about the cold in their hometown and how it would affect their child. Ms Zhang states that it would be difficult to find a job in China and if she does get a job, her salary (and her husband's salary) would be low and not enough to give their child an education. These matters are addressed elsewhere in this decision and the Tribunal generally accepts Ms Zhang's evidence.
15. The Tribunal has considered the totality of the applicant's circumstances. The Tribunal found that there was non-compliance with ss 101 and 103 of the Act and that there are grounds for cancelling the applicant's visa.
16. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. Most significantly, the Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant and his family. This is likely to include the loss of employment for the applicant and the potential difficulty of finding new employment for him and his partner in the future, financial loss and a possible inability to repay the mortgage. The Tribunal accepts that if the applicant was to leave Australia, this may affect his social, financial, employment and other ties in Australia. In particular, the Tribunal acknowledges the length of time the applicant has spent in Australia and accepts that he has formed significant ties in this country and that his preference is to remain in Australia. Generally, the Tribunal accepts that hardship would be caused to his family if the applicant's visa is cancelled. The Tribunal is prepared to accept that some hardship may be caused to the applicant's employers, at least in the short term, if the applicant cannot continue with his current employment.
17. The Tribunal accepts that the applicant contributes to Australia through his employment and, importantly, that he has specialised skills that may be in demand in Australia. The Tribunal accepts that the applicant is well regarded by his employer and will continue to contribute through his skills and knowledge if he is able to remain in Australia.
18. The Tribunal also acknowledges that if the applicant does not hold a permanent visa, his partner is unlikely to be granted her visa. The Tribunal acknowledges the applicant's evidence about his wife's mental and general health. Also, significantly, the Tribunal has formed the view that it is in the best interest of the applicant's Australian citizen child that the visa not be cancelled. It is a primary consideration, but not a determinative one.
19. The Tribunal accepts that the applicant contributes to the community through employment and other activities. The Tribunal accepts that the cancellation of the applicant's visa would have serious implications for other family members. The Tribunal accepts that it is the preference of the family, for a variety of reasons, to remain in Australia and not to relocate to China. The Tribunal accepts that for a variety of reasons explained by the applicant, there are strong reasons why the visa should not be cancelled and also that a primary consideration supports a finding that the visa should not be cancelled. The Tribunal has given these significant weight.
20. Against these considerations, the Tribunal has decided to place greater weight on the circumstances in which the non-compliance occurred. Essentially, the applicant was aware that he was seeking the Skilled visa as a de facto partner of another person and he knew that that relationship did not exist. The Tribunal has formed the view that the applicant had deliberately and knowingly engaged in serious fraud in order to obtain the visa. If it was known to the decision-maker that he was not the de facto partner of the primary visa applicant, the applicant would not have been granted the visa. The Tribunal is mindful that many of the aspects of his settlement in Australia, to which the applicant refers, stem from the fact that the applicant obtained a visa to which he was not entitled. This weighs very strongly in favour of the cancellation.
21. The Tribunal also places weight on the fact that the decision to grant the visa was based, to a very significant degree, on the incorrect answers and bogus documents. It cannot be said in this case that incorrect answers and bogus documents were not relevant or peripheral in assessing the applicant's eligibility for the visa. On the contrary, his claimed relationship with the primary visa applicant was central to his eligibility for the visa. If the correct information was known, the applicant is unlikely to have been granted the visa.
22. The Tribunal places some weight on the fact that the applicant continued to provide incorrect information when sponsoring his partner. The applicant's desire for consistency (which, in the Tribunal's view, was based on his desire not to 'get caught') was of greater import to him than his obligations to provide truthful information when dealing with the Department. This also weighs heavily in favour of the cancellation.
23. Overall, the Tribunal accepts that there are strong reasons why the visa should not be cancelled but in all the circumstances of this case, the Tribunal has decided to place greater weight on the factors in favour of the cancellation.
24. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

1. The Tribunal affirms the decision to cancel the applicant's Subclass 190 - Skilled - Nominated visa.